Rani Pushpa Kumari Devi (Deceased ... vs The Embassy Of Syrian Arab ...
2003 Latest Caselaw 357 Del

JUDGMENT

B.N. Chaturvedi, J.

1. This suit for possession and recovery of damages for use and occupation of the premises No. 15, Palam Marg, Vasant Vihar, New Delhi was filed by Rani Pushpa Kumari Devi, wife of late Dr. Nagendra Singh, claiming herself as owner-landlady of the aforesaid premises. The suit property was let out to the defendant under two separate lease agreements executed on 31st of December, 1985. One agreement pertaining to the entire suit property was executed between late Dr. Nagendra Singh as KARTA of HUF, Smt. Indira Kumari, Smt. Sarla Kumari, both daughters of late Yadvendra Singh, and Raj Singh S/o Shri Luxman Singhjee of Dungarpur on one hand and the defendant, the Embassy of Syrian Arab Republic on the other. The other lease agreement was entered into in respect of ground floor, a servant quarter, one motor garage, lawns and garden between Mrs. Indira Kumari and Mrs. Sarla Kumari, both daughters of late Yadvendra Singh and Shri Raj Singh S/o Shri Laxman Singhjee of Dungarpur, of the one part and the Embassy of Syrian Arab Republic of the other part.

2. After the death of Dr. Nagendra Singh on 11th December, 1988 at Hague sometime in the month of October, 1989, his wife Rani Pushpa Kumari Devi was allegedly attorney as landlady of the entire premises. The defendant started paying rent to her @ Rs. 14,000/- per month and continued to do so up to the month of December, 1990.

3. During his lifetime, on 2nd January, 1983, Dr. Nagendra Singh had served a notice on the defendant stating that the premises were required by him and that no extension of the lease would be granted. This notice was served 24 months in advance to enable the defendant to make alternative arrangement. Rani Pushpa Kumari Devi also wrote to the defendant in January, 1989 seeking vacation of the premises within four months. On behalf of the defendant, the then Ambassador, Mohd. Khodor, in response thereto, sought to vacate the premises within a year. The defendant, however, failed to vacate the premises within that period. Ultimately, a notice dated 27.11.1990 was served on the defendant to vacate the premises on the expiry of the lease. However, the same went unheeded and the premises were not vacated.

4. It is alleged that after expiry of the period of lease and service of notice dated 27.11.1989(1990), occupation of the premises by the defendant was rendered unauthorised and consequently it has incurred the liability to pay damages for use and occupation @ Rs. 1,00,000/- per month being the prevailing market rate of rent at the relevant time. The plaintiff, however, restricted her claim on this account for the period from January, 1991 to April, 1991 only.

5. Rani Pushpa Kumari Devi obtained permission under Section 86(2) of the Code of Civil Procedure (for short, `the Code') from the Government of India, Ministry of External Affairs, New Delhi vide their letter No. 445/39/D III/ 89 dated 1.1.1990, to sue the defendant, before filing the present suit.

6. During the pendency of the suit, Rani Pushpa Kumari Devi died on 11th of August, 1996. Upon an application under Order XXII Rule 10 of the Code, in view of a Will executed by Rani Pushpa Kumari Devi in his favor, Shri A.K. Jajodia, the present plaintiff was substituted as plaintiff in place of Rani Pushpa Kumari Devi.

7. The defendant in its written statement denied that Rani Pushpa Kumari Devi was the owner/landlady of the demised premises and questioned her competence to maintain the suit. It is pleaded that Dr. Nagendra Singh KARTA of HUF, Smt.Indira Kumari, Smt. Sarla Kumari, and Maharani Manhar Kunwar, who was succeeded by Shri Raj Singh after her death, were the owners/landlords of the suit premises, and that Rani Pushpa Kumari Devi was simply acting as their agent for collecting the rent from it on their behalf. It was denied that Rani Pushpa Kumari Devi was ever attorney as landlady of the entire premises or that the defendant paid rent to her in that capacity. The defendant, accordingly, questioned the locus of Rani Pushpa Kumar Devi to file and maintain the suit.

8. Controverting the plaintiff's case that the tenancy was only up to 31st of December, 1990, it is asserted that the tenancy, in fact, has been from month to month and that the same has not been validly terminated. It is pleaded that the notice dated 27.11.1990 was illegal and misconceived and there was no valid termination of the tenancy as Rani Pushpa Kumar Devi had no authority to do so. Pleading that the defendant being only a body of Diplomatic Representative headed by an Ambassador, could not be sued in its own name. Since the Government of Syrian Arab Republic has not been made as a party, it is added, the suit is bad for non-joinder of necessary party. The defendant also questioned the validity of the sanction under Section 86 of the Code granted by the Central Government in favor of Rani Pushpa Kumari Devi. The consent to sue qua the Embassy of Syrian Arab Republic is termed as arbitrary, and invalid and accorded without application of mind. It is further pleaded that in any event the Central Government has not granted any permission to Rani Pushpa Kumari Devi to sue the defendant for recovery of damages and the same is confined to suit for recovery of possession only. Even the jurisdiction of this Court to entertain and try the present suit as been subjected to challenge.

9. Earlier by a Judgment dated 12.10.2000, the suit for possession was decreed leaving the question of mesne profits/damages open for trial after recording of parties' evidence. On an appeal being RFA.(OS).7/2001 against the aforesaid judgment, in view of counsel for the parties agreeing for remand of the case for trial in accordance with law, the judgment and decree for possession were set aside by an order dated 15.5.2001 by a Division Bench of this Court.

10. Following issues were framed on 29th of January, 1996:-

"1. Whether the plaintiff has no locus standi to file the present suit? OPD

2. Whether the tenancy of the defendant has not been terminated in accordance with law? OPD

3. Is the notice dated 27th November, 1990 not valid? OPD

4. Whether the plaintiff has obtained valid permission under Section 86 of the Code of Civil Procedure to file the present suit? OPP

5. Whether the plaintiff is entitled to damages/mesne profits? If so, from which date and what rate? OPD.

6. Relief."

11. Present plaintiff examined himself and two other witnesses, namely, Shri Malkiat Singh(PW-1) and Shri S.D. Moorthy(PW-2) in support of his case for recovery of possession. The defendant, however, in spite of opportunities to do so, failed to adduce its evidence. Apart from oral testimony of the plaintiff and his witnesses, number of documents have been proved on record which constitute part of parties' evidence.

12. I have heard the learned counsel for the parties and perused the pleadings of the parties as well as entire evidence on record.

FINDINGS

ISSUE No. 1:

13. Normally, in a suit for ejectment, issue of ownership in relation to demised premises need not be delved into. However, in a case where, relationship of landlord and tenant is mired, the factum of ownership becomes relevant to resolve the controversy. In the present context, case on hand presents a scenario where the defendant seeks to challenge the locus of the original plaintiff, Rani Pushpa Kumari Devi to file and maintain the suit by denying that she was landlady qua the suit premises. In the given situation, it is rendered imperative to examine the issue of ownership to facilitate an answer to the question of landlady-tenant relationship between the parties to the suit.

14. The Original plaintiff, Rani Pushpa Kumari Devi, filed the present suit claiming herself as owner landlady of the suit premises No. 15, Palam Marg, Vasant Vihar, New Delhi. In terms of perpetual sub-lease deed(Ex.PW-1/1/P-4) she was a co-sub lessee with her husband late Dr. Nagendra Singh, of the land admeasuring 2,000 sq.yds., over which the suit property was later built. Dr. Nagendra Singh died on 11th of December, 1988 leaving behind Rani Pushpa Kumari Devi as his sole legal heir. There appears no challenge to the status of Rani Pushpa Kumari Devi as sole legal heir of Dr. Nagendra Singh from the side of the defendant. The defendant has not come up with the name(s) of any other legal heir of Dr. Nagendra Singh, who could be said to have inherited the suit property along with Rani Pushpa Kumari Devi. There is no evidence indicative of any testamentary disposition of the suit property, by late Dr. Nagendra Singh in favor of any person. A reference was made to an arrangement in the nature of a non-testamentary disposition of a portion of the suit property consisting of the ground floor, a servant quarter, a motor garage, lawns and garden between late Dr. Nagendra Singh and his relatives, namely, Mrs. Indira Kumari, Mrs. Sarla Kumari and late Maharani Manhar Kunwar in consideration of providing funds for carrying out construction of the suit premises. The details of such an arrangement are, however, difficult to gather as no document, if any, in that respect, has been proved on record. From some of the letters emanating from Dr. Nagendra Singh to certain authorities in relation to the suit property, of course, it appears that in consideration of funds supplied for construction of the suit premises, he had transferred right, title or interest in respect of ground floor, a servant quarter, one motor garage, lawns and garden in favor of Smt. Indira Kumari, Smt. Sarla Kumari and Maharani Manhar Kunwar. No document of title in this regard has, however, been proved on record. In the absence of any document of title, thus, there is no basis to hold that right, title or interest in relation to the aforesaid portions of the suit property had been validly transferred to the persons named hereinabove. In the circumstances, as a matter of course, by operation of law, the right, title and interest in respect of the suit property, to the extent the same vested in late Dr. Nagendra Singh, devolved on Rani Pushpa Kumari Devi, the sole surviving legal heir of late Dr. Nagendra Singh.

15. The defendant has set up a case that late Dr. Nagendra Singh was not the exclusive owner of the suit property and, therefore, Rani Pushpa Kumar Devi could not claim to have become the exclusive owner thereof. In this connection, a reference was made to the lease deed(Ex.PW-3/1) carrying recital of Smt.Indira Kumar and Smt. Sarla Kumari, both daughters of late Yadvendra Singh and Shri Raj Singh S/o Shri Laxman Singhjee Dungarpur, being owners of the ground floor, a servant quarter, a motor garage, lawns and garden of the suit property. It was pointed out on behalf of the defendant that being the owners in respect of the aforesaid portions of the suit property late Dr. Nagendra Singh joined them to let out the entire suit property to the defendant vide lease agreement(Ex.PW-3/2). Notably, neither of these agreements is a registered one. The lease in relation to the suit premises, which was sought to be created by means of these lease agreements, was initially for a period of five years. In view of non-registration thereof, however, the lease that was created in favor of the defendant cannot be treated to have been one for five years for want of registration. Section 107 of the Transter of Property Act, 1882 clearly lays down that a lease of immovable property for any term exceeding one year can be made only by a registered instrument. Section 17(1)(d) of the Registration Act, 1908 requires compulsory registration of a lease agreement to create a tenancy for any term exceeding one year. Effect of non-registration of the lease agreements(Ex.PW-3/1 & Ex.PW-3/2) is that the same cannot affect the suit property, nor the same can be received as evidence of tenancy for a period of five years. It is, thus, not legally permissible to refer to the recital of ownership in favor of the said persons in relation to the particular portions of the suit property or in regard to creation of tenancy in favor of defendant for five years. Moreover, mere recital of ownership in the lease agreement(Ex.PW-3/1), in the absence of any document of title to support such a claim, cannot suffice to prove the right, title or interest in the suit property in favor of aforesaid persons to the extent mentioned therein. The mere fact that Smt. Indira Kumari, Smt.Sarla Kumar and Shri Raj Singh joined late Dr. Nagendra Singh to let out the suit property to the defendant also cannot suffice to hold that there was a valid transfer of right, title or interest in their favor, and that they held any interest in the suit premises.

16. Late Dr. Nagendra Singh wrote a letter dated 18.6.1986(Ex.PW-3/D-1) to the defendant instructing it for issue of three separate cheques for Rs. 4,000/-, Rs. 10,000/- and Rs. 6,000/- per month in his favor as well as in favor of Shri Jagat Dhatri Mata Trust and Smt. Rama Kanwar respectively on account of rental from 1st July, 1986 onwards. The case of the original plaintiff, Rani Pushpa Kumari Devi, is that some time in October, 1989, after the death of her husband, Dr. Nagendra Singh in the year 1988, she was attorney as landlady of the suit premises, and that the defendant started paying rent to her for the entire suit property. The fact that the defendant had started paying rent to Rani Pushpa Kumari Devi, after the death of Dr. Nagendra Singh, is admitted by it. The defendant has, however, denied that the rent was being paid by it to Rani Pushpa Kumari Devi as landlady of the suit premises. It is rather added that she was collecting the rent as an agent of the Lessers. Never before filing its written statement, the defendant ever alleged that it started interacting with Rani Pushpa Kumari Devi treating her simply as rent collecting agent of the original Lessers. Rani Pushpa Kumari Devi by her letter dated 7.1.1989(Ex.PW-3/5) required the defendant to vacate the suit premises and hand over vacant possession thereof to her within four months and the defendant in reply(Ex.PW-3/6) to that letter, sought time to vacate the same within a year or so. While doing so, the defendant did not question the authority of Rani Pushpa Kumari Devi to seek vacation of the premises on the plea that she was simply a rent collecting agent of the Lessers, and that it was beyond the scope of her authority to demand vacation of the suit premises and delivery of vacant possession thereof.

17. Again, in pursuance of a letter dated 12.10.1990(Ex.PW-2/1) from Rani Pushpa Kumari Devi seeking permission of the Central Government to sue the defendant for recovery of possession of the suit premises, the Ministry of External Affairs, Government of India, vide their letter dated 9.11.1990(Ex.PW-2/2) asked the defendant to vacate the premises on or before 1.1.1990(1991) and the defendant in reply thereto vide Ex.PW-2/3 simply sought time to vacate the premises as soon as a suitable accommodation would be available. On this occasion also, the defendant did not think of questioning the right of Rani Pushpa Kumari Devi to seek permission of the Central Government to sue for recovery of possession of the suit premises. Further, the defendant, when served with a legal notice dated 27.11.1990(Ex.PW-3/7) by Rani Pushpa Kumari Devi, calling upon it to vacate and hand over peaceful possession of the suit premises on or before 1st January, 1991, did not contest her authority as landlady of the suit premises.

18. Late Dr. Nagendra Singh had written a letter dated 15.12.1986(Ex.PW-1/D-1) addressed to the Lt. Governor, Delhi, seeking mutation of ground floor of the suit property in favor of Shri Jagat Dhatri Mata Trust. He also wrote a letter of even date(Ex.PW-1/D-2) to the Vice-Chairman, Delhi Development Authority, New Delhi enclosing a copy of letter dated 15.12.1986(Ex.PW-1/D-1) on that very subject. It, however, appears that his request for mutation in favor of Shri Jagat Dhatri Mata Trust was not acceded to. On the other hand, a letter dated 6.9.1989(Ex.PW-1/D-4A) from Rani Pushpa Kumari Devi to the Delhi Development Authority in connection with mutation of half unspecified share of her husband, late Dr. Nagendra Singh, yielded a favorable response from the Delhi Development Authority and one half unspecified share of late Dr. Nagendra Singh in the suit property was mutated in her name vide letter dated 29.5.1989(Ex.PW-1/2) from the Delhi Development Authroty. Apart from an affidavit, Ex.PW-1/D-7 stating that she was the sole surviving legal heir of late Dr. Nagendra Singh and that late Dr. Nagendra Singh had not executed any Will in favor of anybody and also an indemnity bond(Ex.PW-1/D-5), Rani Pushpa Kumari Devi had also submitted an affidavit(Ex.PW-1/7) on behalf of Shri Jagat Dhatri Mata Trust to the Delhi Development Authority while seeking mutation of half unspecified share of late Dr. Nagendra Singh in her name. This affidavit was sworn by one Shri R.A. Somanandhan, in the capacity of a Trustee of Shri Jagat Dhatri Mata Trust. Paragraph 2 of this affidavit(Ex.PW-1/7) reads thus:-

"(2) That the aforesaid Jagat Dhatri Mata Trust, New Delhi is not in possession of any part/floor of the house property bearing No. 15, Palam Marg, Vasant Vihar, New Delhi and in future also shall have no such right or claim directly or indirectly or any other right whatsoever in respect of the said house property".

19. Incidentally, apart from being a Trustee of Shri Jagat Dhatri Mata Trust, Shri R.A. Somanandhan was also acting in the capacity of Secretary to Rani Pushpa Kumari Devi. Rani Pushpa Kumari Devi herself was occupying the position of Managing Trustee in the said Trust. In the circumstances, it was argued on behalf of the defendant that the affidait(Ex.PW-1/7) sworn by Shri R.A. Somanandhan on behalf of the Trust was filed at the instance of Rani Pushpa Kumari Devi only and, therefore, no weightage could be attached to it. Be that as it may, even if the contents of affidavit(Ex.PW-1/7) are left aside, in the absence of any document of title in favor of Smt. Indira Kumari, Smt. Sarla Kumar and Maharani Manhar Kunwar, who was later succeeded by Shri Raj Singh, no right, title or interest in the property can be held to have passed on to them.

20. In his letter dated 15.12.1986(Ex.PW-1/D-1) late Dr. Nagendra Singh made a mention of a registered gift deed in respect of ground floor of the suit property executed by Smt. Indira Kumar, Smt. Sarla Kumari and Shri Raj Singh in favor of Shri Jagat Dhatri Mata Trust. This fact finds mention even in the letter dated 6.9.1989(Ex.PW-1/D-4A) of Rani Pushpa Kumari Devi wherein she stated:

"4. That princess Indira Kumari, Princess Sarla Kumari and Raj Singh surrendered their rights in favor of Shri Jagat Dhatri Mata Trust voluntarily by settlement deed dated 8.8.1986."

21. A transferor cannot pass on a better title to the transferee than the one he himself possesses. In the present case, unless Smt.Indira Kumari, Smt. Sarla Kumari and Shri Raj Singh(successor in interest of Maharani Manhar Kanwar) could be proved to have had any right, title or interest with respect to the particular portions of the suit property, they could not have made a valid transfer of their right, title or interest, if any, in the suit property in favor of Shri Jagat Dhatri Mata Trust, notwithstanding the registered gift deed/settlement deed purported to have been executed by them in favor of the Trust.

22. To sum up, it is noticed that for want of any document of title in their favor, there was no valid transfer of any right, title or interest in favor of Smt.Indira Kumari, Smt. Sarla Kumari and Maharani Manhar Kunwar(succeeded by Shri Raj Singh) in respect of ground floor, a servant quarter, a garage, lawns and garden of the suit property and, consequently, they were legally incapable of effecting any valid transfer of any right, title or interest in respect of said portion of the property in favor of Shri Jagat Dhatri Mata Trust by way of registered gift deed. There being no evidence of any testamentary disposition of the suit property or any part thereof during the lifetime of late Dr. Nagendra Singh, after the death of her husband, late Dr. Nagendra Singh, Rani Pushpa Kumari Devi inherited the entire unspecified share of her husband in the suit property and being a co-sub-lessee, she, thus, became exclusive owner of the suit property. By virtue of having become exclusive owner of the suit property, her status as landlady of the suit premises could not be questioned by the defendant. The plea of the defendant in its written statement that it had started paying rent to Rani Pushpa Kumari Devi after the death of late Dr. Nagendra Singh treating her as a rent collecting agent of the original Lessers seems to be simply an afterthought as such a plea was never sought to be raised before even though there were occasions to do so. Being owner/landlady of the suit premises, Rani Pushpa Kumari Devi was, thus, quite competent to file and maintain the suit.

23. Present plaintiff, A.K. Jajodia, stepped into the shoes of Rani Pshpa Kumari Devi by virtue of a Will in his favor executed by Rani Pushpa Kumari Devi on the basis of which Letters of Administration was granted in his favor. Being legal representative of late Rani Pushpa Kumari Devi, Shri A.K. Jajodia, the present plaintiff, is held competent to continue with the suit. Thus, finding no substance in the plea of the defendant that the plaintiff has no locus standi to file the present suit, the issue is decided in favor of the plaintiff and against the defendant.

24. The tenancy in respect of the suit premises was created in favor of the defendant by means of lease agreements Ex.PW-3/1 & Ex.PW-3/2. It was a lease for a period of five years with a renewability clause. As a tenancy exceeding a period of one year was sought to be created in favor of the defendant by way of lease agreements Ex.PW-3/1 & Ex.PW-3/2 by virtue of Section 107 of the Transfer of Property Act, 1882 and Section 17 read with Section 49 of the Registration Act, 1908, the lease agreements were compulsorily to be got registered. However, as the said lease agreements were not got registered, the tenancy could not be taken to have been created for a period of five years and rather it would be a tenancy from month to month. Though on behalf of the plaintiff it was pleaded that the tenancy in respect of suit premises came to an end by efflux of time, such a plea could not be available to the plaintiff in view of the fact that it was simply a month to month tenancy which could be terminated only by serving a 15 days' notice expiring with the end of the month of the tenancy. Ex.PW-3/7 is a legal notice dated 27.11.1990 served by Rani Pushpa Kumari Devi on defendant calling upon it to hand over vacant and peaceful possession of the suit premises on or before 1.1.1991. Service of this notice on the defendant is not in dispute. It was, however, contended that the notice(Ex.PW-3/7), was illegal and misconceived and that there was no valid termination of tenancy as Rani Pushpa Kumari Devi had no authority to do so.

25. By notice(Ex.PW-3/7), the defendant was called upon to hand over vacant physical possession of the suit premises in view of its tenancy having come to an end with the expiry of the lease. The tenancy was not specifically terminated by way of this notice. There is no controversy in regard to date of commencement of defendant's tenancy and if that be the case, tenancy month commencing from 1st December, 1990 would have ended on 31st of December, 1990. By notice(Ex.PW-3/7), the defendant was called upon to vacate and hand over the vacant physical possession of the suit premises on or before 1st January, 1991. To be a valid quit notice, the same should be in conformity with the requirements of Section 106 of the Transfer of Property Act. In terms of that Section, in the absence of a contract, local law or usage to the contrary, a lease from month to month shall be terminable on the part of either Lesser or lessee by 15 days' notice expiring with the end of the month of the tenancy. It is not the argument raised on behalf of the defendant that the notice(Ex.PW-3/7) did not abide by the said requirements of Section 106 of the Transfer of Property Act. The only possible argument against the validity of the notice could be that there was no termination as such of the lease by means of notice Ex.PW-3/7.

26. No doubt, the quit notice(Ex.PW-3/7) appears to have proceeded on the assumption that the lease had come to an end by efflux of time, the intention of the landlady was, however, clearly reflected therein that she did not want the defendant to continue as her tenant, in any case, after 31st of December, 1990, which incidentally also happened to be the date when the period of five years for which the lease was purported to have been created, came to an end. Simply because it was not stated in so many words in the quit notice that the tenancy in relation to suit premises stood terminated after 15 days' of the notice expiring with the tenancy month, the notice(Ex.PW-3/7) cannot be held to have been rendered invalid. One of the requirements of a valid notice to quit is that it must not be vague and uncertain. (see " Dipak Kumar Ghosh Vs. Mrs. Mira Sen", ). When after service of notice(Ex.PW-3/7) the defendant sought some time to vacate the suit premises, it clearly understood the purport thereof and as a matter of fact, accepted the same and sought to act upon it. In such a situation, it is now not open to it to question the validity of the notice on the aforesaid count.

27. In " Harihar Banerji & Others Vs. Ram Sashi Roy & Others", 1918 Vol.XLVIII PC 277, the principles governing sufficiency of notices to quit came up for consideration. In that case, the notice after setting out the reasons for terminating the tenancy, reads thus:

" Under the circumstances, unless you deliver up possession of the said piece of land more particularly described below within one month(torn) date or take a settlement from us on reasonable terms, we shall be unde (torn) painful necessity of taking such steps as we may be advised for the recove(torn) of possession against you and such other person or persons who may claim any right to interfere with our rights and khas possession......"

28. The question involved was if the quit notice called upon the defendant to quit the entire holding under their tenancy or only a portion of it. After taking note of the pleadings of the parties and the contents of the notice, Lord Atkinson said:

"......that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and further, that they are to be construed, not with a desire to find faults in them which would render them defective but to be construed ut res magis valeat quam pereat."

29. Decisions in " Deo D. Huntingtower v. Culliford", (1824) 4 Dowl. & Ry.(K.B.) 248; " Deo D. Williams v. Smith", (1836) 5 Ad. & E.350; and " Wride v. Dyer" , (1900) 1 Q B.2': were taken note of to support the view expressed, as aforesaid. The ratio of decision in Deo D. Huntingtower(supra) was that while construing a notice to quit, the intention of the landlord/landlady is to be kept in view. Where general language is used which is open to doubt, the rule is to make it sensible, not insensible. Ambiguous words are to be given such a sense which will effectuate the intention of the notice.

 30. The decision in Harihar Banerji(supra) was noted with approval in " Bhagabandas Agarwalla Vs. Bhagwandas Kanu & Others"  ,  .  This was a case where validity of the notice to quit was in question  as the same was pleaded to be not in conformity with the requirements of Section 106 of the Transfer of Property Act inasmuch as the date of determination of the tenancy was held by the High Court open to doubt as the notice did not terminate the tenancy on the expiration of the month of the tenancy.    Material part of the notice to quit was in the following terms:-  
   "..You are hereby  informed by this notice that you will vacate the said house for our possession within the month of October 1962 otherwise you will be treated as trespassers from 1st November in respect of the said house."   

 

 31.  While examining the view taken by the  High Court concerning validity of the quit notice, it was held:-  
   " Now, it is settled  law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat.  "The validity of a notice to quit",  as pointed out by Lord Justice Lindley L.J.in Sidebotham v. Holland, (1895) 1 QB 378 "ought not to turn on the splitting of a staw".    It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it must be construed in subtlety, but it must be construed in a common sense way.  See Harihar Banerji v. Ramashi Roy, 45 Ind App 222 : (AIR 1918 PC 102).  The notice to quit in the present case must be judged for its validity in the light of this well recognised principle of interpretation."   
 

 32. The concluding paragraph of the quit notice(Ex.PW-3/7), which is material to find sufficiency or otherwise of this notice, reads thus:  

" Without prejudice to our client's other rights, we have to say that the Embassy has no legal right, title or interest to continue in occupation of the said premises beyond 1st January, 1991 as per the terms and conditions of the Lease Agreement. Any stay beyond the period of lease is clearly illegal, unlawful and would amount to a breach of the agreement as also a breach of trust on the part of the Embassy. In view of your tenancy coming to an end upon the expiry of lease, we call upon you to hand over vacant physical possession of the premises to our client on or before 1st January, 1991. In case of a default by the Embassy in complying with this notice, we hold instructions to proceed against you for recovery of the said premises in a court of law and for which the Embassy shall be responsible/liable as to costs and consequences, which please note....."

33. Of course, reading of the notice evinces that the tenancy of the defendant in relation to the suit premises was not terminated in so many words, but the purport thereof and the intention of the landlady could clearly be understood by the defendant in its right perspective. Though the landlady appears to have had laboured under the impression that it was a tenancy for a period of five years expiring on 1st of January, 1991 and, accordingly, felt that the tenancy was to come to an end by efflux of time and for that reason it was not necessary to specifically terminate the tenancy, her intention was quite loud and clear to the defendant that she was under no circumstance in favor of its continuance as a tenant in the suit property and that it had to go on or before 1st January, 1991 by vacating and delivering back vacant possession of the premises. In the light of the legal position set out hereinabove, there appears no substance in the submissions made on behalf of the defendant questioning the validity of the notice(Ex.PW-3/7). Whether Rani Pushpa Kumari Devi was landlady qua the suit premises and if she was attorney in that capacity after the death of her husband, Dr. Nagendra Singh, calls for no further examination in view of findings on Issue No. 1 while adjudging her locus to institute and maintain the suit for ejectment against the defendant. It is, thus, difficult to accept the plea raised on behalf of the defendant that she had no authority to terminate its tenancy in relation to the suit premises. The defendant's plea against the validity of the notice to quit thus stands negatived and both the issues are answered in favor of the plaintiff and against the defendant.

34. Rani Pushpa Kumari Devi by her application dated 12.10.1990(Ex.PW-2/1) applied for sanction under Section 86(1) of the Code to sue the defendant for recovery of possession of the suit premises. The Ministry of External Affairs, Government of India, in turn, vide their letter dated 19.11.1990(Ex.PW-2/2) wrote to the defendant apprising it of pending application for sanction under Section 86(1) of the Code and requesting it to hand over vacant possession of the suit premises to the landlady on or before 1st of January, 1990(1991). The defendant, in reply to this letter, however, wrote back to the Ministry of External Affairs vide their letter dated 7.12.1990(Ex.PW-2/3) that every effort to arrange an alternative accommodation was being made and sought to assure that the suit premises would be vacated as soon as a suitable alternative accommodation was available. The defendant failed to vacate the suit premises on or before 1st of January, 1990(1991) as requested by the Ministry of External Affairs vide their letter dated 19.11.1990(Ex.PW-2/2). Ultimately, requisite consent under Section 86(1) of the Code to sue the defendant for recovery of possession of suit premises was accorded in favor of Rani Pushpa Kumari Devi vide letter dated 1st of January, 1991(Ex.PW-2/4). Rani Pushpa Kumari Devi thereafter filed the present suit.

35. The defendant questioned the validity of consent so accorded on the plea that the same is illegal and arbitrary and that the same was granted without application of mind. Another plea of the defendant against maintainability of present suit is, which is not connected with the validity part of consent under Section 86(1) of the Code, that the defendant being a body of Diplomatic Representative, headed by an Ambassador, could not be sued in its own name and since the Government of Syrian Arab Republic has not been made as a party, the suit is bad for non-joinder of necessary party.

36. No issue on this plea has, however, been framed. However, as a plea in this regard has been raised in the written statement, it would be appropriate to deal with this aspect also before proceeding to examine the defendant's contention relating to validity of consent under Section 86(1) of the Code and the plea relating to alleged immunity available to a foreign State under Diplomatic Relations(Vienna Convention) Act, 1972. Section 86(1) of the Code speaks of consent of the Central Government in relation to a suit to be brought against a foreign State or in respect of any Ruler of a foreign State. Section 87 of the Code lays down that the Ruler of a foreign State may sue or shall be sued, in the name of his State. Proviso to Section 87, however, adds that the Central Government while giving the consent referred to in Section 86, may direct that the Ruler may be sued in the name of an agent or in any other capacity.

37. In " Mirza Ali Akbar Kashani Vs. United Arab Republic & Another", , it was held that for the purpose of procedure, in every case, the suit has to be in the name of a State. This was a case where the jurisdiction of the Court concerned was subjected to challenge to entertain the suit on the ground that the President of the United Arab Republic was its Ruler and the suit was, in reality and in substance, a suit against him and as such, it was barred under Section 86 of the Code. Besides, the jurisdiction was also questioned on the ground that no part of alleged cause of action had arisen within the jurisdiction of that Court. The trial court, however, did not accept the plea and held that the suit was not barred under Section 86 of the Code. The reasoning was that the bar could be invoked only against the Ruler of a foreign State and not against the United Arab Republic, which was an independent sovereign State. On an appeal under the Letters Patent, the Calcutta High Court upheld the finding of the trial Judge that Section 86 of the Code did not create a bar. In appeal against the judgment of the Calcutta High Court, one of the questions which came up for consideration was in relation to the application of Section 86 of the Code. Noticing that the Calcutta High Court appeared to have had taken the view that Section 86(1) of the Code of 1908 referred to `Ruler of a foreign State' and not to a `foreign State' as such, after examining the relevant provisions contained in Sections 83 to 87B of the Code, running under the heading of "Suits by aliens and by or against foreign Rulers, Ambassadors and Envoys", the Supreme Court concluded:-

"17. ........ it is necessary to bear in mind that even when the Ruler of a State sues or is sued, the suit has to be in the name of the State; that is the effect of the provision of Section 87, so that it may be legitimate to infer that the effect of reading Sections 84, 86 and 87 together is that a suit would be in the name of the State, whether it is a suit filed by a foreign State under Section 84 or is a suit against the Ruler of a foreign State under Section 86. As a matter of procedure, it would not be permissible to draw a sharp distinction between the Ruler of a foreign State and a foreign State of which he is the Ruler. For the purpose of procedure, in every case the suit has to be in the name of a State. That is another factor which cannot be ignored."

38. Under the Code of 1908, Section 86(1) began with the words `No Ruler of a foreign State'. In view of decision in Ali Akbar's case(supra), the words `Ruler of a' were omitted by the Code of Civil Procedure(Amendment) Act, 1976, Section 29 w.e.f. 1st of February, 1977 leaving it to read as `no foreign State' in place of `no Ruler of a foreign State'. The ratio in Alik Akbar was that the words `no Ruler of a foreign State', as the same occurred in Section 86(1) of the Code prior to the said amendment, did not make any difference as the words `Ruler of a foreign State' did not mean anything different from the foreign State itself. It was in this context that it was held that in every case the suit has to be brought in the name of a State. The question that the Ruler of a foreign State could sue or be sued in the name of an agent or in any other name where the Central Government so directs, as provided under proviso to Section 87 of the Code, was not before their Lordships of the Supreme Court for consideration. Undoubtedly, in terms of Section 87 of the Code and pronouncement of Supreme Court in Ali Akbar's case, the Ruler of a foreign State could be sued in the name of the State only but in view of proviso thereto, instead of bringing the suit in the name of the foreign State concerned, it could also be in the name of an agent of that foreign State or any other name, as directed by the Central Government while granting consent under Section 86(1) of the Code.

39. In the present case, from sanction under Section 86(1) of the Code vide Ex.PW-2/4 accorded by the Central Government, it is evident that the consent accorded was for institution of a suit against the Embassy of Syrian Arab Republic, New Delhi in stead of in the name of Syrian Arab Republic. Thus, the defendant's plea that the suit having been brought in the name of Embassy of Syrian Arab Republic without impleading the State of Syrian Arab Republic as defendant is bad for non-joinder of necessary party, is misconceived and the suit cannot be held bad on that account.

40. Turning to the plea against validity of consent under Section 86(1) of the Code vide Ex.PW-2/4 accorded by the Central Government as raised by the defendant, apart from a vague plea that the same is illegal and arbitrary and given without application of mind, nothing more was brought out to substantiate the challenge. In " Harbhajan Singh Dhalla Vs. Union of India", , the Supreme Court observed:

"This sanction or lack of sanction may, however, be questioned in the appropriate proceedings in Court but inasmuch as there is no provision of appeal, it is necessary that there should be an objective evaluation and examination by the appropriate authority of relevant and material factors in exercising its jurisdiction under S. 86 by the Central Government. There is an implicit requirement of observance of the principles of natural justice and also the implicit requirement that the decision must be expressed in such a manner that reasons can be spelt out from such decision. Though this is an administrative order in a case of this nature there should be reasons. If the administrative authorities are enjoined to decide the rights of the parties, it is essential that such administrative authority should accord fair and proper hearing to the person to be affected by the order and give sufficiently clear and explicit reasons. Such reasons must be on relevant material factors objectively considered."

41. The legal position summed up as aforesaid in Harbhajan Singh's case was re-affirmed in " Shanti Prasad Agarwalla & Others Vs. Union of India & Others", . The facts in Shanti Prasad's case were more or less akin to that of the present case, where petitioners had let out their premises on rent to the Consulate General of USSR for a period of 23 years and before expiry of the said period of 23 years, a notice was served on the Consulate General of USSR informing them that they did not intend to extend the lease any further and demanded possession of the premises but the possession was not delivered and, consequently, the petitioners/owners desired to sue for eviction and sought the consent of the Central Government to do so as required by Section 86 of the Code. But the Central Government rejected the petitioners' application stating that the permission could not be given for political reasons. It was in these set of facts that the above observations in Harbhajan Singh(supra) came to be referred to. Present case is not the one where consent has been declined as in Shanti Prasad's case(supra).

42. Sub-Section (2) of Section 86 of the Code imposes a restriction on the Central Government while considering a particular case to accord sanction under sub-Section (1) of Section 86 of the Code to sue a foreign State and unless it appears to the Central Government that the requirements detailed in sub-Section (2) of Section 86 are satisfied, it is precluded from granting sanction. Sub-Section (2) of Section 86 enumerates the situations in which the Central Government could accord its sanction to sue a foreign State. Thus, before granting sanction, the Central Government has to satisfy itself that the case before it is one which is covered under sub-Section (2) of Section 86 of the Code. This obviously involves a process of application of mind. The requirements set forth in sub-Section (2) of Section 86 show the anxiety of the legislature to save foreign States from being subjected to harassment on account of frivolous litigation.

43. The consent(Ex.PW-2/4) was accorded in pursuance of original plaintiff's application in that respect vide Ex.PW-2/1. Even prior to making this application dated 12.10.1990, the original plaintiff appears to have had approached the Central Government on the subject by her letter dated 20.8.1990, which, of course, appears to have not been proved on record to facilitate a reference to the contents thereof. The fact is that all material relevant for consideration, while granting consent under Section 86(1), appear to have been available with the Central Government and, obviously, the same were taken into account before granting sanction under Section 86(1) to sue the defendant. While writing to the defendant, the Central Government vide its letter dated 9.11.1990(Ex.PW-2/2) clearly indicated that in the event of defendant's failure to vacate the premises, it would not be possible for it to deny grant of permission to sue the defendant to enable the landlady to get her house vacated. The defendant on receipt of this letter had not much to say and it simply conveyed to the Ministry of External Affairs vide its letter dated 7.12.1990(Ex.PW-2/3) that efforts were on to arrange an alternative accommodation and sought to assure the Ministry that the premises would be vacated as soon as a suitable accommodation was available. Beyond this, the defendant did not think of contesting the original plaintiff's application seeking consent of the Central Government under Section 86(1) of the Code. Though no reason as such for grant of sanction to sue the defendant is to be noticed, in the consent Ex.PW-2/4 but the same would appear to have been accorded in the light of material that were made available to the Central Government. There would thus be no basis to justify the defendant's plea that the consent was given arbitrarily and without application of mind.

44. In " Govindram Gordhandas Seksaria & Another Vs. State of Gondal by His Highness the Maharaja of Gondal & Others AIR (37) 1950 PC 99, speaking on the point of Inquiry into validity of consent under Section 86(1) of the Code, it was held:

" The certified consent is in all ordinary cases conclusive evidence on the question whether any of the conditions required for the giving of consent existed, or even the question whether it had appeared to the Crown representative that one or more of them did exist. In the absence of any special circumstances, it is no part of the Court's function to go behind a certificate and investigate the facts."

45. Needless to point out, in the context of the present case, that no special circumstances could be brought out on behalf of the defendant to go behind the certificate(Ex.PW-2/4) by embarking upon an inquiry into the facts leading to issue of the said certificate.

46. Apart from assailing the consent accorded under Section 86(1) of the Code, another argument raised on behalf of the defendant was that in view of immunity available under the Diplomatic Relations(Vienna Convention) Act, 1972(for short, `the Act'), the suit against the defendant is not maintainable and the defendant being a Diplomatic Agent of the Syrian Arab Republic enjoys immunity from civil and administrative jurisdiction of the receiving State in terms of Article 31 of the Schedule and, consequently this Court has no jurisdiction to entertain and decide the present suit. This plea does not constitute part of the defendant's pleadings and was raised in the course of final arguments only. The learned counsel for the defendant particularly referred to Section 2 of the Act to contend that in view of the same, Section 86 of the Code goes out of the reckoning and no sanction to sue the defendant could have been granted under that Section. The argument, however, appears to overlook the fact that there is a difference between immunity available to a foreign State and the one enjoyed by a Diplomatic Agent under the Act. No doubt, Section 2 of the Act provides that notwithstanding anything to the contrary contained in any other law, the provisions set out in the Schedule to the Act shall have force of law in India, the same cannot be taken to obliterate Section 86 of the Code to sustain the plea that a foreign State enjoys absolute immunity from being sued in any respect. Except providing for inviolability of the `premises of the mission', which includes the residence of the head of the mission also vide Article 22 of the Schedule to the Act, there is no provision in the said Act which could be referred to in aid of the plea for absolute immunity in favor of the Syrian Arab Republic. In the present case, it is the Syrian Arab Republic which has been sued in the name of its embassy for recovery of possession of the suit premises. Therefore, Article 31 which speaks of immunity of Diplomatic Agent from civil and administrative jurisdiction of the receiving State has no relevance. Such an argument could have been available only if the Diplomatic Agent was sought to be sued. In Ali Akbar's case(supra), taking note of the doctrine of immunity under International Law in the context of Section 86(1), the Supreme Court laid down:

"The effect of the provisions of Section 86(1) appears to be that it makes a statutory provision covering a field which would otherwise be covered by the doctrine of immunity under International Law. It is not disputed that every sovereign State is competent to make its own laws in relation to the rights and liabilities of foreign States to be sued within its own municipal Courts. Just as an independent sovereign State may statutorily provide for its own rights and liabilities to sue and be sued, so can it provide for the rights and liabilities of foreign States to sue and be sued in its municipal Courts. That being so, it would be legitimate to hold that the effect of S. 86 (1) is to modify to a certain extent the doctrine of immunity recognised by International Law. This section provides that foreign States can be sued within the municipal Courts of India with the consent of the Central Government and when such consent is granted as required by S. 86(1), it would not be open to a foreign State to rely on the doctrine of immunity under International Law, because the municipal Courts in India would be bound by the statutory provisions, such as those contained in the Code of Civil Procedure. In substance, S. 86(1) is not merely procedural; it is in a sense a counter-part of S. 84. Whereas S. 84 confers a right on a foreign State to sue, S. 86(1) in substance imposes a liability on foreign States to be sued, though this liability is circumscribed by it. That is the effect of S. 86(1)."

47. The doctrine of immunity under International Law ,thus, cannot allowed to be stretched beyond what is declared by the Supreme Court in Ali Akbar's case(supra). In the circumstances, the defendant cannot be held immune from being sued for recovery of the suit premises. The argument in this respect is totally misconceived as Article 31 of the Schedule to the Act has no application and relevance to the facts of the present case. The defendant, thus, cannot claim to have immunity from jurisdiction of this Court once sanction to sue it stands accorded under Section 86(1) of the Code by the Central Government in favor of the plaintiff. Finding no infirmity in the sanction accorded under Section 86(1) of the Code, the plea of the defendant against its validity is negatived and the issue is answered in favor of the plaintiff.

48. The sanction to sue the defendant being restricted to sue in respect of recovery of possession only, that part of suit which relates to the recovery of an amount of Rs. 4 lakhs on account of damages/mesne profits for use and occupation of the suit premises is not maintainable Consequently, the plaintiff cannot be adjudged entitled to recover the said amount from the defendant as damages/mesne profits. The issue is, accordingly, decided against the plaintiff.

RELIEF

49. The tenancy of the defendant in relation to the suit premises having been validly terminated, its continuance in occupation of the suit premises after 31st of December, 1990 has been rendered unauthorised. Being not entitled to hold possession of the suit premises beyond 31st December, 1990, the defendant must vacate and hand back vacant possession of the suit premises to the plaintiff. The plaintiff is held entitled to the relief accordingly.

50. In the result, the suit for recovery of possession of premises No. 15, Palam Marg, Vasant Vihar, New Delhi, under occupation of the defendant, is decreed with proportionate costs in favor of the plaintiff and against the defendant. The defendant is granted time to vacate the suit premises and hand over vacant possession thereof to the plaintiff within 30 days from the date of this judgment, failing that, the plaintiff will be at liberty to carry out execution of the decree against the defendant in accordance with law.

51. In regard to recovery of Rs. 4 lakhs on account of damages/mesne profits, for use and occupation of the suit premises, the suit being barred for want of sanction in that respect under Section 86(1) of the Code, the plaint is liable to be rejected and it is ordered accordingly.

52. A decree be drawn in the aforesaid terms.